Revisit the two scenarios Menikoff includes in note 6 (page 281, a & bPreview the document). For sure, each scenario is really too short, with too many salient details missing, to provide a thorough analysis. For example, no location is listed, which is a crucial detail since the bulk of health law is state-based.
Assume we are members of a system-wide ethics committee that functions in a hospital system with facilities in several US states. The committee is asked to develop a system-wide ethics policy on situations like the two in the Menikoff text. The policy may need to be tailored to the specific legal frameworks in each state (e.g., reflecting differences in the prevailing definition of adulthood). But the leadership wants this policy to be as communal across its facilities as is legally possible.
The committee has set aside several meetings to develop this policy, looking at different aspects in subsequent weeks: clinical issues, psychological issues, social ramifications, etc. During this week’s meeting, the topic on the committee’s agenda is the legal risk. Evidently, there is no way to prevent any and all law suits arising out of cases like these. Rather, the primary goal of the committee is write a policy that will have a preventive effect by making sure that the rights of all parties typically involved in cases like these (minor, parents, health care providers, hospital, the state) are respected.
So what is the legal risk in cases like these and how can such risk be most effectively managed?
